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socrateaser, Lawyer

Category: Intellectual Property Law

Satisfied Customers: 36059

Experience: Retired (mostly)

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Hello,
Weve been researching an ICANN issue that has come

Customer Question

Hello,

We've been researching an ICANN issue that has come up within our company, who is in the business of providing domain names. We have a section in our agreement that states that our company "will act in accordance with ICANN Registrar Accreditation agreement section 3.7.7.3 upon receipt of actionable evidence of illegal activity. This means that identifying information will be provided to law enforcement and officials of the court including attorneys as situations require in order to preserve our neutrality in any litigation."

One of our executives has asked us to look into this, specifically regarding the possibility of being sued for NOT providing information of our private domain registrants without a subpoena or court order (which, as I understand correctly, is the law?). His worry is that an attorney (who is an officer of the court), providing "actional evidence of illegal activity" (such as is often the case in trademark infringement/cybersquatting allegations) could feel compelled to name us a defendant in such cases in order to force us to disclose this information. He also says that case law is evolving to impart some degree of liability to us in such cases if we fail to disclose the actual registrant.

Can you give me some insight and your opinion on this issue? Is it true that any third party can actually name US (the domain name provider) as a defendant in a suit and compel us to turn over the information? It seems like he is suggesting that we comply with these requests and make our policy a bit more "liberal" for the sake of preventing any possible legal action against us. But, wouldn't that open the door for our own clients to possibly sue us, since we're giving their information away without the necessary subpoena or court order? Sorry, I'm just a bit confused about the subject.

I can explain further if necessary since I'll be sitting in front of my computer all day. Thank you.

The ICANN Registrar Accreditation Agreement is a very complicated document. The contract between ICANN and the United States, which authorizes ICANN activities, is even more complicated. Consequently, my answer here must be somewhat general.

The Registrar Agreement, Section 3.7.7.3, requires that "A Registered Name Holder licensing use of a Registered Name according to this provision shall accept liability for harm caused by wrongful use of the Registered Name, unless it discloses the current contact information provided by the licensee and the identity of the licensee within seven (7) days to a party providing the Registered Name Holder reasonable evidence of actionable harm."

Since your contract apparently requires that you act in accordance with Section 3.7.7.3, any third party harmed by your failure to affirmatively require performance by any registered name holder, in accordance with your agreement, could sue you as a defendant, under the theory that the third party is a donee beneficiary of your agreement with the registered name holder.

However, under current California appellate case law, the third party would lose. In Martinez v. Socoma Companies, Inc., 521 P. 2d 841 (1974), the California Supreme Court held that a donee beneficiary (i.e., a beneficiary who receives either a gratuitous benefit or a right conferred by a contract between contracting parties), must be able to show from the face of the contract that there was some intent to confer the gift or benefit on the third party.

As far as I can see, there is nothing in either the Registrar contract, or the contract between ICANN and the USA, which comes close to conferring such a benefit. Consequently, my answer here is that an enterprising plaintiff's attorney would have to successfully overcome existing California precedent in suing your business. That may not stop you from being sued, because, as I'm sure you're aware, there are no shortage of enterprising lawyers who couldn't grab the law if it was written on an anvil and dropped on their head. So, a lawyer could fail to conduct the necessary research to come to the conclusion that I've arrived at in this question, and as a result, you could end up being sued, and you would have to defend -- the result being ultimately successful, but also probably costly in terms of legal fees.

Concerning your being subpoenaed without being named as a party, you certainly could be, and that would be the ordinary means of obtaining information about one of your customers.

Unfortunately, I see no way for you to completely avoid liability under the circumstances, given that you have no contract privily with any third party unknown -- so, there no way for you to protect yourselves from exposure -- other than to try to purchase insurance to cover the risk. I don't see the risk as being particularly great. But, it seems that insurance is really the only protection that would have any effect to cover your risk.

Of course, you could entirely remove the contract provision stating that you will act in accordance with 3.7.7.3. But, I doubt that this would prevent your being sued, because, as previously mentioned, an attorney that isn't aware that the appellate case law is dead-on against his client's interests, probably won't care what your contract states -- the attorney will simply assume that his client is a third party beneficiary, file suit, and then start waiving his/her hands in front of the judge in the hopes of prevailing -- or, at least, in the hope of convincing his/her client that it's the judge's fault for being a bozo, when the attorney and client lose.

Please let me know if my answer is helpful, or if I can provide further clarification or assistance.

I will tell you that...the things you have to go through to be an Expert are quite rigorous.

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